In this entry, I will explain anti-device regulations (i.e., regulations that outlaws certain devices that enable circumvention of DRM technologies.)
The reglations are devided into two parts: devices for usage control under copyright law, and devices for access control under unfair competition prevention law.
(1) under Copyright Law
anti-device regulation focuses only on usage control and not access control. The rationale behind is the same as direct circumvention regulations: copyright holders do not have a right to control access under copyright law.
The scope of acts that are regulated is narrower than most of other implementation examples. The key points are: (a) devices are limited to those have a “principal function” for the circumvention of technological protection measure, which is narrower than devices that have “only limited commercially significant purpose for use other than” circumvention in the U.S.; (b) the dissemination is limited to those to the public; and (c) remedies are granted only through criminal procedures.
And the efforts that are regulated under anti-device regulations are: (1) to transfer to the public the ownership of; (2) to lend to the public; (3) to manufacture, import or possess for transfer of ownership or lending to the public; or (4) to offer for use by public those circumventing devices. Manufacture such device and transfer to a specific person does not constitute the violation of this regulation. The reason to limit the device regulation to actions toward the public is to limit the regulation to actions that have a large impact on the interests of copyright owners.
One more interesting thing about the scope of Japanese anti-device regulation is that there is only criminal statute and there is no civil remedy for the violation. According to the official commentary, this is because copyright owners can anticipate the circumvention of usage control of copyrighted materials at the time of manufacture or offer of the circumventing devices, and thus it is regarded that the interest of the copyright owner is not mature enough to be granted civil remedies based on specific copyrighted materials.
(2) under Unfair Competition Prevention Law
As can be seen above, the anti-device regulation is rather limited in the Copyright Law in Japan. However, the National Diet at the same time amended the Unfair Competition Prevention Law (“UCPL”) to regulate circumventing devices for access control, based on an approach of competition regulation, rather than copyright protection. That is, in UCPL, the anti-device regulation is much broader compared to that under copyright law as described above.
First, it is broad in a sense that the anti-device regulation under UCPL includes both usage control and access control. The idea is to protect businesses of content providers who charges fees over providing technologically controlled contents, and from such perspective, distinction between usage and access that are relevant under copyright law is not competent.
Second, the regulation in UCPL lacks distinction between copyrighted materials and the public domain, because this regulation is designed to be outside the copyright regime. From the perspective of unfair competition among content providers, it is claimed to be unimportant whether the distributed materials are copyrighted or not. Any kind of digitalized materials can be commercial goods for a fair competition. Therefore, it does not matter whether the materials the entrepreneurs provide are copyrighted or not. Content providers who are providing others’ copyrighted materials or even materials in the public domain can seek civil remedies based on UCPL.
Third, UCPL does not limit the entitled persons to copyright owners: all entrepreneurs using controlling technologies for their business (mostly broadcasters and other content providers) are entitled to seek injunctions and/or damages. This means that even a non-exclusive licensee (distributor) of copyrighted works, can claim to stop the dissemination of devices UCPL.
UCPL has only one statutory exemption. The article is very simple. It states that to assign, transfer, display, export, import, or provide over the Internet the circumvention devices or programs “for the purpose of testing or research regarding technological protection measures” is exempt. There is no detailed limitation regarding the definition of “testing” and “research,” as is the case in DMCA.
The official commentary explains the aim of the exemption statute is to ensure free and competitive activities targeted toward developing more sophisticated technological protection measures. The exemption is intended to include all of the following activities: testing and research made by the service providers alone, or together with device manufactures for development of new technologies; testing and research for validity and vulnerability of technologies currently used in the service or to be used in the future service; testing and research done by content owners to ensure the effectiveness of the protection measures, or to compare the pros and cons of the several technologies that may be applied to their content.
However, the commentary also explains that it was a deliberate decision of the legislators not to have any other statutory exemption. With regard to exemptions for law enforcement or other government activities, the legislators decided unnecessary because circumvention devices provided for such purposes cannot be regarded as “unfair competition” and therefore not regulated under UCPL in the first place. The legislator also discussed about creating a statutory exemption to respect the copyright limitation statutes, and concluded not to. The reasons were because: (a) circumvention devices could create considerable economic loss to content owner if misused; and (b) legitimate and acceptable uses would not be regulated under UCPL because such uses would not cause “commercial damages” that were large enough to be regulated under UCPL.